Exhibit 10.33
AGREEMENT
This Agreement ("Agreement") is made and entered into this ___ day of
_________, 2003 between CART, Inc., a Michigan corporation, having its place of
business at 0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000 ("CART")
and Xxxxxxx Racing, Inc. 0000 Xxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxxxx, XX 00000
("TEAM").
W I T N E S S E T H:
WHEREAS, CART has sanctioned the Bridgestone Presents the Champ Car World
Series Powered by Ford ("Championship Series") in 2003 ("Race Year");
WHEREAS, CART desires to induce TEAM to enter a race car (car #20)
exclusively in the Championship Series in the Race Year and TEAM is interested
in entering a race car upon the terms and conditions set forth herein;
WHEREAS, CART desires to obtain endorsement and promotional services, and
TEAM is willing to advertise and promote the Championship Series on the terms
and conditions hereafter set forth; and
WHEREAS, the parties desire to establish a mutually beneficial relationship
in accordance with the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. TEAM shall prepare and enter and expend its best efforts to qualify and
race one (1) race car exclusively in the Championship Series, in all of
the races in the Race Year.
2. In consideration for TEAM's agreement to race in each of the races, and
in consideration of TEAM's providing promotional benefits through
advertising on the race car and other below enumerated promotional
services, CART agrees to pay TEAM the sum of One Million Four Hundred
Thousand ($1,400,000.00) Dollars during the 2003 race season. The
payments will be made in nineteen (19) equal installments. The payments
shall be made during the week following each of the races in the race
season. If there are less than nineteen (19) races in the race season,
the monies remaining after the last race of the season shall be paid in
a lump sum.
3. TEAM understands that the payment of the funds set forth in paragraph 2
above is intended to supplement TEAM's revenue so that TEAM has enough
funding to field a team during the Race year. In the event that TEAM
receives sponsorship revenue that totals more than Seven Million
($7,000,000.00) Dollars net (less commissions), TEAM will reimburse
CART fifty (50%) percent of all excess amounts until CART has been
reimbursed the amount set forth in paragraph 2 above. For purposes of
this Agreement, net sponsorship revenue less commissions shall include
all amounts given to TEAM under this Agreement and the Entrant Support
and Participation Agreement. So long as this Agreement remains in
effect, and for a period of one (1) year thereafter, TEAM agrees to
maintain complete and accurate books and records containing information
necessary to calculate the amount of net sponsorship (less commissions)
funds collected. Upon at least ten (10) days written notice by CART,
TEAM shall allow its books and records to be examined and audited by
CART at reasonable times.
4. TEAM agrees to abide by all the rules and regulations of CART and the
series including but not limited to execution of the Entrant Support
and Participant Agreement.
5. TEAM agrees that it shall provide the following promotional services to
CART:
A. CART may assign to TEAM a "CART Sponsor" for purposes of this
Agreement. The CART Sponsor will be a single entity that has
provided CART sponsorship revenue. CART will not assign the CART
sponsor to any other team. A CART Sponsor may be rejected by TEAM if
such sponsorship violates or conflicts with any existing TEAM
that TEAM has entered into prior to the CART
Sponsor being presented to TEAM.
B. Identification Elements (at the sole cost of the CART Sponsor -
These items will be provided for in 2003:
(i) Logo identification on the team transporter and logistic
trailers
(ii) Logo identification on the racing transporter, fire suits and
uniforms
(iii) Website link to XXXX.xxx
C. Signage: (at the sole cost of the CART Sponsor and subject to any
existing s with TEAM, which shall take
priority).
(i) On at least Four spaces on the race car, including the front
and rear wings and or portions of the sidepod top and the
engine cowling if available.
(ii) Prominent Logo on Team/Driver Uniforms (placement and size
subject to TEAM's reasonable discretion).
a. Driver's cap - CART Sponsor signage prominently displayed
b. Driver's "off track" clothing - CART Sponsor prominently
displayed on driver's casual wear
c. Crew helmets - CART Sponsor signage prominently displayed
d. Crew fire suits - Color and design of fire suit determined
by CART Sponsor
e. Crew caps - CART Sponsor signage prominently displayed
(iii) Prominent Logo on team equipment
a. CART Sponsor logo on scoring stand, refueling station, and
other team pit equipment
b. CART Sponsor logo on team transporters - Color and design
of graphics on team transporters determined by CART Sponsor
(iv) Prominent Pit banner signage during race events
(v) Coordinated Public Relations Program
a. Sponsor recognition in all interviews; print, television,
radio, and digital mediums
b. Usage of driver/car/team for advertising needs
c. Media releases announcing team and sponsorship activities
d. Recognition on web page as a primary sponsor
e. Primary sponsor recognition on all Team printed material
f. Dedicated Public Relations department
D. Team must supply hospitality for CART Sponsor and its guest as set
forth below:
(i) All CART Events where TEAM has its hospitality unit
(ii) Five (5) annual credentials each year
(iii) Five (5) paddock credentials and pit passes at each event
(iv) Five (5) grandstand tickets at each event
(v) Two (2) Suite tickets at each event
6. The term of this Agreement shall commence upon the date both parties
have executed this Agreement and shall continue until the end of the
2003 Race Year unless terminated prior thereto pursuant to the terms
hereof.
7. Except with the written approval of CART, TEAM will not disclose,
publish or disseminate confidential information (which shall be defined
as the terms of this Agreement) to anyone other than those of their
employees, attorneys and accountants with a need to know and TEAM
agrees to take such reasonable precautions as may be necessary to
prevent any unauthorized use, disclosure, publication, dissemination of
confidential information which shall include the terms of this
Agreement. In the event TEAM violates the provisions of this paragraph,
CART has the right to declare this Agreement null and void and TEAM
shall be required to refund any monies paid through that date. Further,
any press releases or public statements regarding the relationship of
the parties must be approved by CART.
8. The parties acknowledge the importance of each party's reputation, good
will and public image and, accordingly, agree to maintain and enhance
such image by restraining from taking any action contrary to the best
interest of either party, or detracting from the reputation of either
party. Each party shall refrain from making any statements about the
other party that adversely affects, casts in an unfavorable light, or
otherwise maligns the business or reputation of such other party or any
of its principals.
9. TEAM will maintain throughout the length of this Agreement, commercial
general liability insurance (including but not limited to advertising
liability and contractual liability coverage applicable to the terms of
the indemnification provisions of this Agreement) covering claims for
personal and bodily injury, and property damage arising out of the
staging and performance of the races, with limits of at least Three
Million ($3,000,000.00) Dollars combined single limit per occurrence.
Each party shall specifically name CART as an additional insured.
10. TEAM agrees to indemnify, defend and hold harmless CART and any
sponsor's of CART whose logo may appear on TEAM's car from and against
any and all expenses, damages, claims, suits, actions, judgments, and
costs, including reasonable attorneys' fees arising out of or in
connection with the running of a car in any race during the Race year.
11. This Agreement shall be governed and construed in accordance with the
laws of the State of Indiana. If a dispute arises under this Agreement
which cannot be resolved first through good faith negotiations, such
dispute shall be submitted to arbitration and resolved by a single
arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. Such arbitration shall
take place at
the office of the American Arbitration Association located in
Indianapolis, IN. The award of decision rendered by the arbitrator
shall be final, binding and conclusive and judgment may be entered upon
such award by any court. This provision shall survive the termination
and/or expiration of this Agreement.
12. This writing constitutes the entire Agreement between the parties
hereto regarding the subject matter hereof and may not be changed or
modified except by a writing signed by the party or parties to be
changed thereby.
13. This Agreement does not constitute and shall not be construed as a
consulting, partnership or joint venture between TEAM and CART. Neither
party shall have any right to obligate or bind the other party in any
manner whatsoever, and nothing herein contained shall give, or is
intended to give, any rights of any kind to any third party.
14. The failure of either party at any time or times to demand strict
performance by the other of any of the terms, covenants or conditions
set forth herein shall not be construed as a continuing waiver or
relinquishment thereof and each may at any time demand strict and
complete performance by the other of said terms, covenants and
conditions.
15. This Agreement has been jointly drafted by the respective
representatives of CART and TEAM and no party shall be considered as
being responsible for such drafting for the purpose of applying any
rule construing ambiguities against the drafter or otherwise. No draft
of this Agreement shall be taken into account in construing the
Agreement.
16. It is hereby understood and agreed to by CART and TEAM that any
statement or notice required to be given hereunder shall be deemed
given if mailed, certified mail, return receipt requested to the
following addresses:
If to CART: CART, Inc.
0000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: X. Xxxxxxxx Xxxx, III
If to TEAM: Xxxxxxx Racing, Inc.
0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, XX 00000
17. This Agreement may be terminated in the event that:
(i) Either party to this Agreement files a petition in bankruptcy or
a petition in bankruptcy is filed against either party to this
Agreement that is not removed within thirty (30) days from the
date such petition is filed; a general assignment of either
party's assets is made for the benefit of creditors; or CART
dissolved or liquidates pursuant to Delaware state law or
otherwise.
(ii) Either party to this Agreement breaches any of the material
representations, warranties or covenants contained in this
Agreement, which breach is not cured by the breaching party
within thirty (30) days after receiving written notice of such
breach from the other party.
If the Agreement is terminated by TEAM pursuant to the terms of this
Paragraph 17, TEAM shall be entitled to retain all sums paid to it by
CART through the date of termination.
If the Agreement is terminated by CART pursuant to a breach of the
terms of this Agreement as defined in 17(ii) CART shall be entitled to
immediately terminate any future payments to TEAM and shall be entitled
to a refund by TEAM of all monies previously paid under this Agreement.
If CART terminates this Agreement pursuant to Paragraph 17(i), it shall
be entitled to immediately terminate any further payments to TEAM.
18. Titles to articles, paragraphs and subparagraphs are for information
purposes only and shall not be considered a substantive part of the
Agreement.
19. This Agreement and any subsequent amendments may be executed in one or
more counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement. This
Agreement and any subsequent amendments may be signed and delivered by
facsimile transmission, which delivery shall have the same binding
effect as delivery of the document containing the original signature.
At the request of any party, any document delivered by facsimile
signature shall be followed by or re-executed by all parties in
original form, provided that the failure of any party to do so will not
invalidate the signature delivered by facsimile transmission.
20. In the event that any provisions of this Agreement are found to be
invalid or unenforceable by any court of competent jurisdiction, such
provision may be deemed severed and any such finding shall not
invalidate or render unenforceable any other provisions hereof.
21. Each party shall comply with all governmental laws, ordinances, and
regulations applicable to the performance of this Agreement over which
said party has jurisdiction and control.
22. This Agreement may be unilaterally terminated by CART in the event CART
is unable to field eighteen (18) entrants in the 2003 Race Year or in
the event CART ceases to sanction races during the Race Year. In the
event of such termination, this Agreement shall be null and void with
no further obligations or liability on the part of either party. It is
further agreed and understood that this Agreement must be approved by
the Board of Directors of CART's parent company.
CART, Inc.
By:_____________________________________
Its:____________________________________
XXXXXXX RACING, INC.
By:_____________________________________
Its:____________________________________
